In Fisher v. Texas, Look at the Politics

By Ian Haney-Lopez, The New York Times

We should expect the Supreme Court in Fisher v. Texas to declare affirmative action unconstitutional. To understand this decision, ignore the social reality of continued racial inequality. Focus instead on electoral politics past and present.

After 1980, the Supreme Court virtually never found mistreatment against nonwhites; instead, conservative justices wielded their power against affirmative action.

Starting with Richard Nixon, conservative politicians campaigned against the Supreme Court, using it as a foil in the culture wars. Forced busing, affirmative action, the coddling of criminals — these supposed offenses were charged to the court, and then used to mobilize voters discomfited by recent racial progress. Beyond race-baiting, other choice phrases included school prayer, abortion on demand, and tolerance for the homosexual lifestyle. In the 40 years preceding Barack Obama’s election, Republicans elected on these themes held the presidency for 28 years — and appointed 12 of the 14 justices elevated to the court.

The net result for racial justice can be easily summarized. The court stopped seeing in the Constitution a source of protection for minorities: after 1980, it virtually never found mistreatment against nonwhites. Instead, conservative justices wielded their power against affirmative action. They ended efforts to use race to promote integration in contracting, employment and voting — and, with Fisher, likely higher education.

These dramatic reversals occurred in fits and starts. After a notable pause, a re-energized bloc is marching again. Two especially devastating developments loom. The court seems intent on making federal laws banning discrimination as ineffective as they’ve rendered the constitution in detecting racial mistreatment; and also poised to extend the ban on affirmative action to corporations, private hospitals, foundations and unions. If these come to pass, the court will have curtailed every direct means of achieving an integrated society.

Once again, today’s presidential campaign resounds with themes of gay marriage, abortion, contraception and now affirmative action — issues guaranteed to inform judicial appointments. In 2012, vote as if racial justice depends upon it. 2/23/2012